Coville & Garber v. Gilman

13 W. Va. 316

• Court: West Virginia Supreme Court
• Decided: May 4, 1878
• Status: Published

Opinion

Green, President,

delivered the opinion of the Court:

The first question, presented by the record, is: Ought the bill to have been dismissed for want of equity on its face, or on the demurrer?

The first difficulty in sustaining the bill is, that on its face it appears that'the partnership, the settlement of whose accounts is sought, has never been dissolved. The general rule is, that a court of equity will not entertain a bill for the settlement of partnership accounts, while the partnership is still existing ; and the bill on its face shows, that no dissolution of the partnership is contemplated. Ordinarily a bill in equity for the settlement of a partnership account, filed pending the partnership, must either directly pray the dissolution of the partnership, or show that it is contemplated, so that the general prayer for relief may be interpreted to include a prayer for dissolution. See Forman v. Hornfray, 2 Ves. & Bea. 329; Russell v. Troscombe, 4 Sim. 8.

It is true that Sir John Leach, in Harrison v. Armintage, 4 Mad. 143, thought otherwise; but the weight of above authority and reason is in favor of the general rule laid down, though there are exceptions to it: for instance, as it is a rule, that before a dissolution of a partnership all the partners must be parties to the suit, if the parties are so numerous, that they cannot be all brought before the court, a chancery court might order a settlement of the "partnership transactions, though the partnership was still existing, and no dissolution of it could be asked for or decreed, because “ the proper parties could not be brought before the court.” See Walworth v. Holt, 4 Myl. & Cr. 685 (18 Eng. Ch. R.).

The case before us however is no exception to the general rule; and a court of equity cannot entertain the bill, whose object is a settlement of the partnership accounts, unless the bill shows, that a dissolution of the partnership is contemplated, or is substantially prayed for. I think however, the dissolution of the partnership is substantially prayed for in thiscase. The bill alleges, “that the co-partner Gilman, by his contract with the oil company hada certain interest in the well, which by the terms of the partnership became its property, the complainants being entitled to one half of the productions of this well, and Gilman to the other half, after paying expenses. One of the prayers of the bill is, “that Gilman maybe required to assign and transfer to the complainants, his co-partners, a one-half interest of such rights, as he may have to said well and lot, in accordance with his contract.” If such transfer was made, the parties would thereafter hold the well as tenants in common, and notas partners; and this prayer is therefore the equivalent of a prayer, that the partnership should be dissolved. And so regarding it, the bill ought not to have been dismissed on demurrer, or for want of equity.

The next enquiry which presents itself is: the effect'of the verdict of the jury and judgment of the court in the action of assumpsit. Is it to have no effect in the settlement of the partnership accounts, because the settlement of such accounts belongs exclusively to a court of equity, as the complainants in their bill insist? Or does it, as the defendant in his answer insists, preclude entirely the settlement of the partnership accounts, as such, in a court of equity, because the [question was, in the action of assumpsit, fairly submitted to the jury, whether any partnership existed, and ¡ having heard all the evidence they found, that no partnership existed ? Or finally is it to be considered, that the jury, in the action of assumpsit, directly and conclusively decided only, that the one thousand two hundred and ninety-four barrels and sixteen gallons of oil, pumped prior to June 11, 1874, excluding the six hundred and forty-seven barrels and eight gallons, pumped before that time and paid as rent, after deducting a fair charge for the items of costs in sinking the well after the fair charge for pumping prior to that time, as contained in the offsets, filed by the defendants in the action of assumpsit, belonged exclusively to the plaintiff, Gilman, and that it must as Well as these offsets be excluded from the settlement of the partnership ; but that, the existence of the partnership not being directly put in issue by the pleadings in the action of assumpsit, a court of equity is not precluded from settling up the partnership accounts, after excluding therefrom those items on both sides, which, the jury must have found directly, did not belong to the partnership, that is, the items contained in the bill of particulars, filed with the declaration in the action of assumpsit, and those contained in the bill of offsets, filed by defendant?

The last is the effect, which ought to be given to this verdict and judgment.

It is thoroughly well settled, that matters, which have been once determined by judicial authority, cannot be again drawn in controversy by the same parties and privies to the decision. See Smith v. Whiting, 11 Mass. 446; Young v. Black, 7 Cranch 567; Embury v. Conner, 3 Coms. 522. And this rule is as applicable, when the matters were first determined in < a common law court, and are afterward drawn in controversy in a suit in equity, as in any other case. Samson v. Hart, 14 Johnson 77. This conclusiveness of a judgment extends, beyond what may appear on its face, to every allegation, which has been’ made on the one side, and denied on the other, and was at issue, and determined in the course of the proceedings. Thus a physician, against whom a judgment is recovered for malpractice, cannot recover in a second suit for services, in the course of which the malpractice is alleged to have occurred; and a judgment in favor of the physician will prevent the recovery against him in a second action for malpractice. Edwards v. Stewart, 15 Barb. 67 ; Bellinger v. Oraigan, 31 Barb. 534.

All the authorities agree, that it it appears from the record, that a point in controversy was necessarily decided in the first suit, it can not be again considered in any subsequent suit. Burke v. Miller, 4 Gray 114; Whelan v. Hill, 2 Whart. (Pa.) 718; Marsh v. Pier, 4 Rawle (Pa.) 273; Rice v. King, 7 Johns. 20; Betts v. Starr, 5 Conn. 550; Hopkins v. Lea., 6 Wheat 109; Astin v. Parkins, 2 Burr. 666.

When the record discloses the exact point in controversy, the rule, above laid down, is universally admitted; but when, by reason of the generality of the issue, it embraces many issues, it is not possible to determine, on what issue the verdict was rendered, the question, whether the real issue tried by the jury, and on which their verdict was rendered, can be proven by parol evidence, has given rise to decisions, which are not harmonious. The weight of authority however, as well as of reason, is, that in such case the issue, actually tried by the jury, may be proven by parol; and when so proven, it is as conclusive, as if shown by the record alone. Doty v. Brown, 4 Coms. 71; Washington, Alexandria and Georgetown S. P. Co. v. Sickles et al., 24 How. 344; Badcock & Co. v. Camp, 12 Ohio N. S. 11, 36; Wood v. Jackson, 8 Wend. 10. But it is the verdict and judgment on the issue, actually made, which is thus conclusive, and while it establishes his right conclusively, it does not establish the facts, on which that right depends, unless they are set forth definitely on the record. See opinion of Supreme Court, delivered by Justice Catron in Aspden et al. v. Nixon et al. 4 How. 499; Bennet v. Holmes, 1 Dev. & Bat. 486; Haight v. The City of Keokuk, 4 Clarke (Iowa) 199; Shafer v. Stonebraker, 4 Gill. & J. 345; Washington, Alexandria and Georgetown S. P. Co. v. Sickles et al., 24 How. 333; Hibshman v. Dalleban, 4 Watts 183.

Parker, Chief Justice, in King v. Chase, 15 N. H. 15, lays clown the law on this subject with great clearness. He says: “The judgment is conclusive only upon the matter, which was directly in issue upon the former trial; and the question arises, what is to be understood by the matter in issue? The Dutchess of Kingston case, 11 St. Tri. 261, furnishes the rule. All are agreed in the rule laid down in that case; but the difficulty lies in its application, in determining what is meant by a judgment directly on the point.

“Any part, attempted to be established by evidence and controverted by the adverse party, may be said to be in issue in one sense. But this is not the matter in issue, within the meaning of the rule. It is the matter, upon which the plaintiff' proceeds by his action, and which the defendant controverts by his pleading, which is in issue.

“The declaration may show specially, what this is, or it may not. If it does not, the party may adduce other evidence to show, what was in issue, and thereby make the pleadings, as if they were special. But facts, offered in evidence to establish the matter in issue, are not themselves in issue, within the meaning of the rule; although they may be controverted on the trial. Deeds, which are merely affirmed in evidence, arc not in issue, even if their authenticity be denied.”

In that case King sued Chase, a sheriff, in trespass, for levying upon and selling certain hay, which, the evidence showed, he claimed had been conveyed to him by a certain mortgage. Under the general issue the defendant proved, that by the same mortgage certain oats had been conveyed to the plaintiff, and that he had levied on those oats, and been sued therefor by the plaintiff in an action of trover; and under the general issue he had defended the suit on the ground that the mortgage was fraudulent and void; and this he proved by parol evidence. The jury had found a verdict for the defendant in this suit and judgment was rendered upon it. The court below permitted this evidence to be received ; but said, while proper evidence to be submitted to the jury to show, that the matters in controversy in the last suit had been determined in the first, yet it was not to be regarded as conclusive. ,

This action and judgment of the court was reversed; and Parker, Chief .Justice, further says in his opinion: “ In the first suit the matter in issue was the title to the oats, and the conversion by the defendant in that case. Upon that the jury passed. They found, that the plaintiff had no title, or that the defendant did not convert them. It may be shown by parol evidence!, on which ground the verdict proceeded; and it appears in this case that they found the plaintiff had no title. The conversion in that case is not denied. That matter then is settled. The verdict and judgment may be given in evidence in another action for the bats, and is conclusive ; but that is the extent of what was in issue.

“It appears, that the title of the plaintiffs, set up in that case, was by the mortgage. In finding, that the plaintiffs had no title to the oats, the jury must have been of opinion, that the mortgage was fraudulent. It is contended, that this was the issue and the only matter in issue. But this was only a controversy about a particular matter of evidence, upon which the plaintiffs then relied to show title. If that were the only matter in issue, the plaintiffs might bring another suit for these oats, against the same defendants, relying on some other title than the mortgage, and try the title to the oats over again. Can he do so? Clearly not; and the reason is, that it is his title, which has been tried; and he is concluded. The title however, which has been tried is only his title to the oats. The question, whether the mortgage was fraudulent came up only incidentally, by reason of his relying on that as his title. But the niort-gage was not the matter of issue. Towns v. Mines, 5 N. H. 263.

“ But while this finding is conclusive on the question of the plaintiffs’ title to the oats, it is neither conclusive nor evidence upon anything else, because nothing else was in issue. And this is important for the security of both parties. The title of the properly in question in this suit,' the hay, has not been tried. If the plaintiff has no title to it but the mortgage, the defendants may show the mortgage is fraudulent by the same, evidence, the matter was shown before.”

A bill of particulars is evidence to show the precise subject matter of the suit, the verdict and judgment in which are deemed to be conclusive evidence of the matter adjudicated in it. See Marsh v. Pier, 4 Rawl. (Pa.) 273.

Applying the law to the case before us, it is obvious from the bill of particulars, filed in the first action of assumpsit, that the plaintiff claimed, that the proceeds of the one thousand two hundred and ninety-four barrels and sixteen gallons of oil, pumped prior to June 11, 1874, were his property ; the defendants, by their plea of non-assumpsit, put directly in issue the plaintiff’s claim to this oil, pumped prior to June 11, 1874. If the plaintiff did not own this oil, the jury would necessarily have to find for the defendant. The verdict, of the jurv for the plaintiff, and the judgment of the court thereon, are on the principles above stated conclusive of the fact, that this one thousand two hundred and ninety-four barrels and sixteen gallons, were the property of plaintiff, as the ownership of it was directly in issue. It being thus conclusively determined, that this one thousand two hundred and ninety-four barrels and sixteen gallons of oil belonged to the plaintiff, Gilman, the defendants are necessarily precluded from claiming in this chancerv suit, that it did not belong to Gilman, but belonged to the partnership of Gilman, Coville & Garber.

Again, when the defendants filed their bill of offsets, they thereby claimed, that, they had a right to offset against the plaintiff’s demand on them for the proceeds of his said oil the costs and expenses of sinking the oil well, which are set forth in the bill of offsets filed, and also the cost of pumping oil from the well prior to June 11, 1874. And this claim of Coville & Garber must have been necessarily passed-upon by the jury; and they decided, that so much of Coville & Garber’s claim for these particular items of costs in sinking this well and pumping this oil, was just, as would be sufficient to reduce the plaintiff’s claim to the proceeds of this oil, and for the use of his engine and tank, to $985.20.

All the parties to this action of assumpsit aré, on the principles above laid down, conclusively bound by this verdict of the jury and judgment thereon ; and therefore in the chancery cause it must be held, that this judgment determines conclusively, that the plaintiff, Gilman, is entitled to be paid by Coville & Garber for one thousand two hundred and ninety four barrels and sixteen gallons of oil, pumped prior to June 31, 1874, and for use of his engine and tank to that date, $985.20, this oil belonging exclusively to Gilman ; and-that Co-ville & Garber having been allowed as an offset so much on their bill of offsets, as the jury deemed just, they are concluded from sotting up against Gilman in this chancery cause any claim on account of any item, set forth in their bill of particulars of offsets; but they are not precluded, from settingup any claim against Gilman, or against the partnership of Gilman Coville & Garber, if there be such partnership, any item of expense, not specified in this bill of particulars of offsets, even though such charge arose, or expense was incurred, prior to June 11, 1874, as the jury could not have allowed them anything for any such item, not specified in their bill of offsets.

The principles, above stated, lead us necessarily to the conclusion, that the verdict and judgment in the first action of assumpsit not only does not conclusively determine, that all the oil, pumped from the well since June 11, 1874, after the payment of rent and expenses of pumping, belong to Gilman individually; but this verdict and judgment cannot be regarded, as any evidence on this point. The ovmershipof any oil, pumped after Juné 11, 1874, was obviously not directly included in the issue," decided in the action ot assumpsit. was the question, whether there was, or was not, a partnership between the plaintiffand defendants, included in the issue, made by the pleadings in this action of as-sumpsit. It was a matter of fact, that during the trial of this action of assumpsit the question, whether there was, or was not, a partnership, became a controverted fact; but, as we have seen, this controverted fact, arising incidently, is not itself the issue, within the meaning of the rule, that a judgment is conclusive on the matters in issue in a suit.

The jury, in the case of King v. Chase, 15 N. H. 15, must have concluded, that the mortgage, under which, the evidence showed, he claimed the oats, was fraudulent, and therefoi’e he had no claim to them; still it was held, that this did not conclude him from claiming in another suit against the same party hay, which he claimed only by the same mortgage, though it would preclude him from claiming again the oats, because the validity of the mortgage was not involved in the issue, made by the pleadings. Here the fact, that the jury or even must, have found from their verdict, that there was no partnership, precludes the parties from claiming, that there was, so far as the oil specifically claimed in that case is concerned; but will not prevent the parties setting up, that there was such a partnership, so far as any oil, not claimed in that action of assumpsit, is concerned ; for the question, whether there was, or was not, a partnership, vas not directly involved in the issue, made by the pleadings in that case.

The position of the appellant's counsel, that a court of equity has exclusive jurisdiction of the settlement of partnership accounts, and that a court of equity will interfere by injunction, whenever the defense is one of purely equitable cognizance, arc unquestionably sound ; but they have no application to the present case. The jury did not undertake to settle any partnership account; they were exjiressly instructed then, that they^could not do so, and that if the items, claimed by the plaintiff in the action of assumpsit, were items in a partnership account, they could not act on them, but must find for the defendant; and in rendering a verdict for the plaintiff, they must have decided, that there was no partnership, or at any rate that the items of account, claimed by the plaintiff, did not belong to any partnership account, but did belong to the plaintiff individually; and so far as these items are concerned, we have seen, their finding on these items is conclusive on the parties.

The case of Wells, et al., v. Strange, 5 Ga. 22, is not at all inconsistent with the views I have above expressed. A tavern had been built by a company.or partnership, formed for the purpose, on a lot, subscribed by one of the partners as his portion of the capital stock ; and a hotel was erected by the partnership or company on it; and it was rented of the partnership by one of the partners. The father of the partner, who had subscribed the lot as his share of the stock, then instituted an action of ejectment, he having the legal title to this lot; and he recovered the tavern and its back rents for its use. A bill was then filed for a settlement up of the partnership by the partner, who had rented this hotel; and an injunction was awarded against the plaintiff in the ejectment suit, to prevent him from enforcing this judgment in the ejectment suit, the bill alleging that the partnership was, under certain facts stated, the equitable owner of this lot and hotel. It is obvious, that the only question, submitted to the jury in the trial of the ejectment, was whether the plaintiff had the legal title to this lot and tavern; and this was all, that was decided by the jury. But the conclusiveness of this verdict and-judgment was in no manner assailed by the granting of the injunction, as it was granted, because it was inequitable to permit him to take advantage of the fact, that he. had the legal title, to oust those, who held the equitable title. And the rents and profits of course, in a court of equity, would follow the equitable title; and one who could claim them only as their legal owner, in trust for the partnership, ought not to be permitted to collect them of one, who was a partner in the partnership, and who alleged, that the partnership was in his debt. The. case was simply one of the familiar cases, where a court of equity interferes by injunction, to prevent a trustee from ousting the cestui que trust by legal proceedings out of property, which in equity belonged to the cestui que trust.

The allegation in the bill, that Gilman owedCoville & Garber §208.00, money paid by them for him to Burke, and that Gilman was insolvent, was no ground for continuing the injunction to the enforcement of the judgment in the action of assumpsit, for .several good reasons. And one or two of these it will suffice to state;: First-These allegations of the bill are positively denied by the answer on oath, and no evidence has been taken to prove them; and again, excluding from the partnership the matters, which were conclusively settled by the verdict and judgment in the common law suit, and the statement in the bill and the testimony of the plaintiffs in the chancery cause, show clearly, that, on a settlement of the partnership, they must be in debt to Gilman more than $208.00,and therefore there is no reason, why he or his assignees should not be permitted to enforce their judgment.

The next enquiry is: Ought not the court to have dissolved the injunction, so far as it prohibited Gilman from prosecuting his action of assumpsit against Coville & Garber for oil, pumped since the institution of the first action of assumpsit? Gilman would seem to have as much right, by such a suit, to have the verdict of a jury on the question, whether he was the sole owner of this oil, as the other parties have to the judgment of the chancery court on the question, whether there was a partnership. And if the same exact question was involved in both proceedings, it would seem, that the suit first brought ought to be permitted to be prosecuted, and the question of controversy settled in it. But we have seen, that the same question is not involved in the action of assumpsit and in the chancery suit. In the action of as-sumpsit the jury and court can only determine,whether the oil pumped up to the time of the institution of that suit was the individual property of Gilman, or partnership property. And another, or many other similar actions of assumpsit, might be brought from time to time, just as two have already been brought; and the decision of one of them could not be even used as evidence in the other. On the other hand, in the chancery suita decision, that no partnership exists, or the contrary, will settle this controversy forever, and prevent any other suit, in which this point could be again controverted. To avoid multiplicity of suits therefore, it would seem to be proper for a court of equity to enjoin this common law suit, and prohibit the institution of others, till this question has been conclusively settled in this suit in equity. The avoiding of a multiplicity of suits is a familiar source of equitable jurisdiction. And injunctions are properly awarded to prevent such multiplicity of suits. Waters v. Taylor, 2 Ves. & Beam. 302; Ware v. Harwood, 14 Ves. Jr. 33; Trustees of Huntington v. Nicoll, 3 Johns. 566.

There is therefore no error in the decree of April 26, 1876, dissolving the injunction, which had been granted, so far as it restrains the enforcement of the judgment, recovered at law by said J. C. Gilman against Corrydon Coville and Jonathan Garber in the bill mentioned, or so far as it refrained from dissolving the residue of the in-j unction.

The said decree must therefore be affirmed ; and the appellees must recover of the appellants their costs, expended in this court, and $30.00 damages; and this cause is remanded to the circuit court of Ritchie county, with instructions, that when the same comes on for hearing, if from the evidence then in the cause the court is satisfied, that there was no partnership between J. C. Gilman and the complainants, the injunction then should be entirely dissolved, and the bill dismissed at the complainants’ costs; but if such partnership is proven to the satisfaction of the court, and it is also proven, that it ought to be dissolved, the court should render a decree dissolving the partnership, and disposing of all its assets, and for closing up the same, and order an account to be taken óí the partnership accounts, in the taking of which the commissioner should exclude from the accounts all the items, included in the bill of particulars, filed in the first action of assumpsit, and all the charges in the bill of offsets, filed in said action of assumpsit, but permit either party to prove any item, properly belonging to the partnership accounts, though its date be prior to June 11, 1874, if the same is not included in said bill of particulars or bill of offsets; and further proceed in said cause according to the principles laid down in this opinion, and the principles governing courts of equity in such causes.

Judges HayMond and Moore concurred.

Degree AffirMed and cause remanded.